IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TERRY DURBIN,

Plaintiff,

v.

COLUMBIA ENERGY

GROUP PENSION PLAN,

Defendant.

Case No. 2:11-cv-334

JUDGE PETER C. ECONOMUS

OPINION AND ORDER

This matter is before the Court upon cross-motions for judgment on the administrative 

record: Defendant Columbia Energy Group Pension Plan’s (“the Plan” or “Plan”) motion (doc. # 

10) and Plaintiff Durbin’s motion (doc. # 11). The parties have filed response briefs, and the 

matter is ready for adjudication. 

I. FACTUAL BACKGROUND

The Plan is an employee pension benefit plan, which was established and maintained by 

NiSource pursuant to the Employee Retirement Income Security Act (“ERISA”) of 1974, 

codified in 29 U.S.C. ' 1001, et seq. (Complaint, doc. # 1, & 2; Answer, doc. # 3, & 2.) Durbin, 

as an employee of Columbia Gas (now NiSource), was a participant in the Plan. Sometime in 

1999, the Plan was amended, and eligible employees were offered a choice of benefit plans

between the “Final Average Pay” benefit and the “Account Balance” benefit. (Complaint, & 6; 

Answer, & 6.) 

The Plan states as follows:

Making Your Election 

Making your election is easy. Between March 15 and April 30, 

2000, call The Benefits Source at 1-888-640-3320 to make your 

Retirement Choice. Be sure to have your Personal Identification 

Number (PIN) available before you call since you will need it to 

make your election. You will be able to enter your Retirement 

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Choice through the automated phone system. After entering your 

SSN and PIN, choose Pension Information. Next, press 1 to make 

your Final Pay/Account Balance Choice election. Press 1 to 

switch from the current Final Average Pay to the Account Balance 

option or press 2 to continue under the Final Average Pay option. 

You will then hear a confirmation message of your election. 

Customer Service Associates will also be available to help you 

process your election if you need assistance. If you fail to make an 

election, you will be defaulted to the Final Average Pay option, 

your current option.

(Doc. # 9 – 1, page 22.) Sometime in 2010, Durbin sought information from NiSource about his 

benefits. NiSource informed him that he was in the Account Balance plan—and had been since 

his election to that plan during the April 2000 election period. (Complaint, & 10 – 11.) Insisting 

that he never made that election, Durbin filed a formal claim for Final Average Pay benefits, and 

his claim was denied by the NiSource Benefits Committee (“the Committee”). (Id., & 12 – 13.) 

In reaching that determination, the Committee reviewed the following evidence:

• Affidavit of Mr. Durbin, dated July 26, 2010, including two 

exhibits (employee benefit description and letter from 

Durbin to Human Resources requesting signed election 

forms)

• Affidavit of Mr. Ezzo, fellow employee of Durbin

• Affidavit of Mr. Lannoy, fellow employee of Durbin

• Electronic database records regarding Durbin’s benefit 

election

• Individual annual account statements for Durbin from 2003 

– 2009 under the Account Balance option

• Account Balance option beneficiary designation forms 

signed by Durbin

(Doc. # 9 – 1, pages 6 – 7.) The Committee also considered letters from Durbin’s legal counsel, 

as well as letters from a NiSource benefits director and his investigative report. (Id.) In denying 

Durbin’s claim, the Committee relied on the electronic database created when Durbin made his 

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election, as evidenced by a screenshot showing Durbin’s name and election. It also relied on the 

confirmation statement mailed to Durbin (as indicated on the screenshot), the annual benefit 

statements sent to Durbin from 2003 through 2009, and his Account Balance beneficiary 

designations in the years 2000, 2003, and 2006. (Id., pages 46 – 47.) 

In its denial of Durbin’s later appeal, the Committee reiterated its reliance on the abovementioned evidence, as well as its consideration of Durbin’s assertions that he did not make the 

Account Benefit election and that he did not understand references to “Account Balance Option” 

over the years as he received account statements. Further, the Committee considered Durbin’s 

statement that he had filled out a paper “ballot” indicating his decision to remain in the Final 

Average Pay benefit. The Committee summarized its decision as follows:

The sum total of these considerations by the Committee—

including the fact that the records available for Mr. Durbin were 

similar to the records available for similarly situated employees, 

the fact that those records reflect the election of the [Account 

Balance benefit] as well as transmission of a confirmation 

statement, and the degree of subsequent communications reflecting 

the [Account Balance benefit]—lead the Committee to conclude 

that Mr. Durbin did elect the [Account Balance benefit] during the 

2000 Choice Period. To allow him to reverse that election with the 

benefit of more than ten years of hindsight would be to treat him 

differently than any other employee, and would be inconsistent 

with the Plan’s express provisions. Accordingly, for these reasons, 

the Committee denies Mr. Durbin’s appeal.

(Id., page 4.) Having exhausted his administrative remedies, Durbin filed the instant action in 

which he seeks a determination that he is entitled to benefits under the Final Average Pay benefit 

provisions of the Plan. (Id., & 16.)

II. STANDARD OF REVIEW

The court reviews a plan administrator’s denial of benefits de novo, unless the benefit 

plan specifically gives the plan administrator discretionary authority to determine eligibility for 

benefits or to construe the terms of the plan. Morrison v. Marsh & McLennan Companies, Inc., 

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439 F.3d 295, 300 (6th Cir. 2006). Where an ERISA plan gives a plan administrator such 

discretion, this Court reviews the determinations under the “arbitrary and capricious” standard. 

Id. at 300 (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989)). The 

arbitrary and capricious standard is “the least demanding form of judicial review.” Morrison, 

439 F.3d at 300. Though deferential, the arbitrary and capricious standard “is not a rubber stamp 

for the administrator’s determination.” Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 617 (6th Cir. 

2006). Under this standard, the Court will uphold the administrator’s decision “if it is the result 

of a deliberate, principled reasoning process and if it is supported by substantial evidence,” even 

if the Court disagrees with the result reached by the administrator. Glenn v. Metro. Life Ins. Co., 

461 F.3d 660, 665 – 66 (6th Cir. 2006) (citing Baker v. United Mine Workers of Am. Health & 

Ret. Funds, 929 F.2d 1140, 1144 (6th Cir. 1991)). See also Moon v. Unum Provident Corp., 405 

F.3d 373, 379 (6th Cir. 2005) (noting that even if a court would come to a different conclusion as 

the plan administrator, as long as there is a reasonable basis for the decision, it must be upheld).

In ERISA cases, a court’s review of a plan decision is generally limited to the evidence 

presented to the administrator and in the administrative record at the time of the administrator’s 

decision. Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir. 1991). The 

administrative record relied upon by the Committee is in evidence (doc. # 9) and there is no 

dispute regarding any of the evidence within it.1

 

1 Plaintiff quibbles with the Committee’s reliance on “unsworn” statements of a NiSource human 

resources employee. (Plaintiff’s Motion, page 11.) In doing so, however, Plaintiff points to no case law 

or rule that would prohibit the Committee from considering those statements.

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In this case, there is no dispute that the Committee, as Plan administrator, has discretion 

to determine the terms of the Plan.2

III. ANALYSIS

 (Plaintiff’s Motion, page 8; Defendant’s Motion, page 13.) 

This Court finds that the Plan contains a clear and express grant of discretionary authority to the 

Committee. Therefore, the scope of review is limited to whether the Committee’s interpretation

of the Plan was arbitrary and capricious. 

Under the highly deferential arbitrary and capricious standard, the Committee’s 

interpretation of the Plan’s provisions must be upheld if it is “reasonable.” Morrison v. Marsh & 

McLennan Companies, Inc., 439 F.3d 295, 300 (6th Cir. 2006). The Committee denied Durbin’s 

claim because the evidence that he had elected the Account Balance benefit option outweighed 

any evidence to the contrary. In fact, the only evidence Durbin offers is his statement that he had 

not made such an election. The other evidence he presented—in the form of affidavit statements 

of fellow employees—is not pertinent. In those affidavits, Durbin’s fellow employees aver that 

they filled out a paper ballot indicating their choice of benefit, something that Durbin asserts he 

did, as well. However, the Plan sets forth specifically the only way in which an election could be 

made—by an automated telephonic system. If an employee failed to avail himself of this option, 

he would remain in the Final Average Pay benefit by default. The existence of a paper ballot is 

not relevant. 

 

2 Although Plaintiff agrees that the Plan’s language grants to the Committee “sufficient discretion,” he 

argues that the standard of review is “largely irrelevant” for two reasons. First, a “default rule” permitted 

an employee to do nothing to remain in the Final Average Pay plan, and to prove that he had stayed in the 

Final Average Pay benefit Durbin must prove that he did nothing, which he finds to be “unfair.” Second, 

because the Committee is the sole custodian of all of the relevant evidence, any forms that cannot be 

found are not Durbin’s fault. (Motion, pages 8 – 10.) Neither of these reasons relate to the standard of 

review.

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The evidence shows that Durbin called into the automated system and elected the 

Account Balance option. All of the subsequent documentation confirms this choice, such as the 

beneficiary designation and the account statements. 

Durbin offers multiple theories regarding how the screenshot showing his Account 

Balance election could be erroneous, as well as how the years’ worth of account statements could 

be misread. Unfortunately, he offers no case law to support his implicit argument that the 

Committee acted unreasonably when it failed to value speculative theories over hard evidence.

Finally, Durbin argues that the Committee acted under a conflict of interest when it 

considered his claim and that this conflict of interest should factor into the Court’s analysis of 

whether the denial of his claim was arbitrary and capricious. (Plaintiff’s Motion, page 11.) In 

the context of ERISA claims, a potential conflict of interest exists where the plan sponsor bears 

all or most of the risk of paying claims and also appoints the body designated as the final arbiter 

of such claims. Univ. Hosp. of Cleveland v. Emerson Elec. Co. 202 F.3d 839, 847 n.4 (6th Cir. 

2000). In such circumstances, “the potential for self-interested decision-making is evident.” Id. 

In support of this alleged conflict, Durbin points to the fact that “NiSource funds all of the Plan’s 

benefits and a Committee appointed by its Chief Executive Officer decides all claims for 

benefits.” (Plaintiff’s Motion, page 11, internal citations omitted.) Durbin offers only more 

speculation about the paper ballot to support his conflict-of-interest allegation.

Durbin’s claim itself undercuts any potential conflict of interest. The Committee was not 

tasked to flatly approve or deny a claim for benefits; rather, it undertook to determine which 

benefit applied. Durbin offers no evidence—or even speculation—that there existed a financial 

benefit to the Committee if it determined that Durbin was enrolled in the Account Balance 

benefit, not the Final Average Pay benefit. Further, even if Durbin had succeeded in establishing 

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a conflict of interest, it would be but “one factor” to consider when evaluating the Committee’s 

determination that Durbin had elected the Account Balance benefit option. Schwan v. Guardian 

Life Ins. Co. of America, 626 F.3d 299, 311 (6th Cir. 2010). If the decision was nevertheless 

supported by substantial evidence—as it was here—it will be upheld. Id. at 311.

In sum, this Court finds that the Committee’s determination was reasonable when it 

concluded that Durbin elected the Account Balance benefit. Additionally, there is no evidence 

that the Committee was operating under a conflict of interest. Therefore, the decision of the 

Committee should be upheld.

IV. CONCLUSION

For the foregoing reasons, Defendant Columbia Energy Group Pension Plan’s Motion for 

Judgment on the Administrative Record (doc. # 10) is GRANTED, and Plaintiff Terry Durbin’s 

Motion for Judgment on the Administrative Record (doc. # 11) is DENIED. The Clerk of 

Courts is hereby ordered to enter judgment in favor of Defendant Columbia Energy Group 

Pension Plan as to all claims, with prejudice. 

IT IS SO ORDERED.

PETER C. ECONOMUS

/s/ Peter C. Economus _____________

UNITED STATES DISTRICT JUDGE

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